Supreme Court Rules Prosecutor's Indictment Invalid in Bribery Case

A ruling by South Korea's Supreme Court has determined that a prosecutor's indictment following an investigation led by a prosecutor's investigator is invalid, as it constitutes the prosecutor's 'initiation of investigation.'

On August 18, the Supreme Court's third division, led by Justice Lee Suk-yeon, overturned a lower court's sentence of eight years in prison and a fine of 200 million won for an individual identified as A, who was charged with violating the Act on the Aggravated Punishment of Specific Crimes (bribery). The case has been sent back to the Daegu High Court.

A, a public official from a local government, was accused of receiving 680 million won in exchange for facilitating a park development project in May 2016.

The investigation began in December 2022 after a complaint was filed with the Daegu District Prosecutors' Office. A prosecutor's investigator initiated the inquiry under the direction of a prosecutor, subsequently referring the case to Prosecutor B, who conducted further investigations and indicted A in December 2024.

During the investigation, the prosecutor's investigator uncovered allegations that A had falsely registered two of his children as employees at a company to receive legitimate salaries, which constituted bribery. Prosecutor B then pursued additional investigations into four related cases before filing charges.

Both the first and second trials deemed B's indictment as lawful, convicting A. The courts ruled that the case fell under the jurisdiction of the prosecutor's investigator acting as a judicial police officer, and thus did not qualify as a 'crime initiated by the prosecutor' under the Prosecutors' Office Act.

Article 4, Section 1 of the Prosecutors' Office Act lists the types of crimes for which a prosecutor may initiate an investigation, including corruption and economic crimes. Section 2 states that 'a prosecutor may not file charges for crimes they initiated an investigation into, except for those referred by a judicial police officer.'

While the Supreme Court acknowledged the legality of B's indictment regarding the complaint case, it ruled that the investigation initiated by the prosecutor's investigator under B's direction constituted a crime initiated by B, rendering the remaining charges unlawful. Consequently, the court annulled all verdicts related to A's charges.

The court stated, "The term 'initiation of investigation' in Section 2 of Article 4 should be interpreted as referring to cases where the prosecutor is responsible for the initial investigation of a crime, meaning they are in charge of the 'primary investigation.'"

It further explained, "Prosecutor's investigators operate under the direction of a prosecutor according to the Prosecutors' Office Act and the Criminal Procedure Act, and their investigations should be seen as assisting the prosecutor's investigation. Therefore, even if a prosecutor's investigator initiates an investigation into a crime, it should be regarded as the prosecutor's own initiation of investigation under Section 2 of Article 4."

Additionally, the court noted, "Even if the prosecutor's investigator completed the investigation and referred the case to the prosecutor, it does not imply that the prosecutor's investigation has ceased, and thus it cannot be classified as a 'crime referred by a judicial police officer' under Section 2 of Article 4."